Rallying for immigration plan.

Photographer: Tom Williams/CQ Roll Call

Who Cares If They're Legal?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The much-awaited immigration case challenging President Barack Obama's right to waive deportation for unauthorized immigrants was argued before the Supreme Court today. It looks as though the administration may possibly have a path to win -- even if only on technicalities.

The argument was dramatic. Justice Sonia Sotomayor took on the Texas solicitor general in an extended colloquy that made her seem almost like an advocate for immigrants rather than a justice. And U.S. Solicitor General Donald Verrilli said the administration was prepared to forget about granting official legal status to undocumented immigrants as long as they were protected from deportation -- a step that could nullify most objections to Obama's executive order.

Immigration Reform

The two possible swing voters, Chief Justice John Roberts and Justice Anthony Kennedy, started out being hard on Verrilli. But later in the argument, they hinted that they might be willing to find a legal mechanism to overturn the judgment of the appeals court that blocked the administration's plan.

There are essentially two ways the Obama administration could win the suit and preserve the Deferred Action for Parents of Americans scheme that the president enacted by executive order in November 2014. The first, and easiest, would be for the court to dismiss the state of Texas lawsuit that prompted the U.S. Court of Appeals for the Fifth Circuit decision now being reviewed.

In its brief, the federal government had argued that Texas lacks the standing to bring the suit in the first place because it isn’t really harmed by the law. In the oral argument, Texas Solicitor General Scott Keller countered that his state is harmed because, under its own law, it must issue driver’s licenses for anyone the federal government authorizes to be in the U.S. legally. Because the president's executive order declares undocumented parents of children born in the U.S. to be "lawfully present," Texas asserted, the state would have to incur the cost of issuing driver’s licenses to many thousands of people who were otherwise ineligible.

To make the case disappear, the court could simply say that issuing more drivers licenses wouldn’t harm Texas enough to give it the legal standing to sue under the Constitution. Sotomayor hit this point hard. At one point in the oral argument, she told Texas' Keller that she didn’t see why issuing more licenses would cost Texas anything. The state wouldn’t have to add more employees, she said -- applicants could just wait in longer lines.  And anyway, the state charges $25 to all applicants, which might well cover any additional cost.

Justice Stephen Breyer made another argument about why Texas didn’t have standing. He cited the 1923 case of Massachusetts v. Mellon, often described as the beginning of modern standing doctrine. In that case, the Supreme Court rejected the idea that any taxpayer could sue a state for an allegedly unconstitutional expense. From there, Breyer drew an analogy to the state of Texas claiming that it could challenge the executive order because it might cause the state to spend more money. Solicitor general Verrilli enthusiastically agreed that Breyer’s analogy is “dead on correct.”

The real targets of the standing arguments are Roberts and Kennedy, who represent votes 5 and 6 that could break a 4-4 tie. The chief justice seemed skeptical. He asked at one point, “isn’t losing money the classic case for standing?” And he added that under the court’s doctrine, “we have a special solicitude for the claims of the states.”

But Roberts was more sympathetic to a separate line of argument that might allow the government to win on the merits. Solicitor General Verrilli argued that the president doesn’t actually need to insist that the undocumented persons are “lawfully present,” as the executive order states. "We are not trying to change anybody's legal status," Verrilli said. "If the court thinks it's a problem and wants to put a red pencil through it, it's totally ….fine. Really." All Obama needed to do, he asserted, was to defer deportation of the immigrants in question.

Verrilli's gamble placed Texas in a difficult position. Keller, representing the state, all but admitted that the president could choose to tell parents of children born in the U.S. that they were low priority for deportation, and even give them a document that says so. But he stuck with his insistence that the executive order was unconstitutional because it would change the legal status of the undocumented parents to lawfully present -- an action he said exceeded presidential authority.

But if the executive order doesn’t actually change the person's legal status, and instead just defers deporting them, then there’s nothing unconstitutional about it. Roberts seemed open to this argument. He asked the Texas solicitor general, “Why don't you go ahead and not give [undocumented people] a driver's license?” The implication was that the president hadn’t yet done anything that amounted to changing the parents’ legal status, and so Texas might not have to issue them licenses.

Kennedy seemed to be considering a similar possibility. He proposed that Texas might really want to challenge, not the executive order itself, but an existing federal regulation that says immigrants who have been granted a deferral for deportation are entitled to work. This suggestion implied that Kennedy might be prepared to hold that the executive order didn’t change anyone’s legal status or confer work authorization on its own -- which would be at least a partial victory for the Obama administration.

  1. A priceless detail was Sotomayor’s comment that such lines are common in places she has applied for licenses, namely New York and Washington, DC. Indeed the lines at the registry of motor vehicles in DC -- especially for registering one’s car – are epic, as I can attest from personal experience in the early 2000s.

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Noah Feldman at nfeldman7@bloomberg.net

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